Delaware Eviction Defense Guide

Facing Eviction in Delaware?

Delaware evictions are governed by the Residential Landlord-Tenant Code, Title 25 Del. C. § 5101 et seq. Most evictions are filed in Justice of the Peace Court (for possession only) or Court of Common Pleas (for possession and back rent). Understanding notice requirements and tenant defenses is critical.

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Delaware Notice Requirements — § 5502 & § 5106

Nonpayment of Rent (§ 5502)

5-Day Notice to Quit

The landlord must serve a written 5-day notice to quit before filing for summary possession. The notice must state the amount of rent owed and demand payment or surrender of the premises within 5 days. If you pay within 5 days, the landlord cannot proceed with eviction.

•5 days written notice required
•Payment within 5 days stops the eviction
•Notice must state the exact amount owed

Termination of Tenancy / Lease Violations

Notice Periods Vary

For month-to-month tenancies, the landlord must give 60 days written notice (§ 5106). For week-to-week tenancies, 7 days notice is required. For lease violations other than nonpayment, the landlord must give a reasonable opportunity to cure before filing.

•Month-to-month: 60-day notice
•Week-to-week: 7-day notice
•Lease violations: notice and opportunity to cure

Delaware Summary Possession Process

Landlord files complaint in Justice of the Peace Court or Court of Common Pleas

Most landlords file in Justice of the Peace Court (possession only). If the landlord wants to recover unpaid rent in addition to possession, they file in Court of Common Pleas. Filing fee is approximately $40–50.

Summons served on tenant

The court issues a summons scheduling a hearing date, typically 7–15 days out. Service is by constable or certified mail. The summons will state the date, time, and location of the hearing.

Appear at the hearing

Attend the hearing and present your defenses. You do NOT need to file a written answer in advance — you may appear and defend orally. Bring all documentation: lease, payment records, communications with the landlord, photos of any habitability issues.

If judgment enters against you — appeal within 15 days

If the court rules in the landlord's favor, you have 15 days to appeal to the Superior Court (from JP Court) or Court of Common Pleas (from Justice of the Peace). You must pay a bond or request a bond waiver if you cannot afford it.

Writ of possession

If you do not appeal and do not vacate, the landlord can request a writ of possession from the court. The constable will post notice and schedule the lockout. You must vacate by the posted date.

Key Defenses for Delaware Tenants

Rent Was Paid

Bring receipts, money order stubs, bank statements, or cancelled checks showing payment. The landlord must prove rent was unpaid at the time of filing.

Defective Notice

The landlord did not give proper written notice, gave insufficient notice (less than 5 days for nonpayment), or failed to state the amount owed. A defective notice is a complete defense.

Habitability — Implied Warranty (§ 5303)

Delaware law requires landlords to maintain rental units in habitable condition. Serious code violations (no heat, water damage, rodent infestation) may reduce or offset rent owed.

Retaliatory Eviction (§ 5516)

If you reported code violations or exercised any tenant right, and the eviction was filed within 90 days of that action, there is a presumption of retaliation. The landlord must rebut this presumption.

Landlord's Failure to Mitigate (Escrow)

If you withheld rent due to the landlord's failure to make repairs after notice, you may be entitled to pay rent into court escrow rather than to the landlord while repairs are pending.

Acceptance of Rent After Breach

If the landlord accepted rent after the alleged breach or after the notice period, they may have waived their right to evict for that breach.

Free Legal Help in Delaware

Community Legal Aid Society (CLASI)

302-575-0660

Free legal help for low-income Delawareans including housing and eviction defense statewide

Legal Services Corporation of Delaware

302-478-8850

Federal legal aid for qualifying tenants in New Castle County and statewide

Delaware Volunteer Legal Services

302-478-1040

Pro bono civil legal help including housing matters for low-income residents

Delaware Courts Self-Help Center

courts.delaware.gov

Housing forms and self-help guides for Court of Common Pleas proceedings

Respond to Your Eviction

Delaware Eviction Defense Documents

Get a complete eviction defense packet — tenant defenses checklist, answer instructions, habitability documentation guide, and plain-English explanation of Delaware Justice of the Peace and Court of Common Pleas procedure.

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For informational purposes only. Not legal advice. Consult an attorney for your specific situation.